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Agreement with Department of the Army aolq-08f3c AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND CITY OF MIAMI BEACH, FLORIDA FOR THE CITY OF MIAMI BEACH, MOUNT SINAI MEDICAL CENTER, SECTION 14 PROJECT THIS AGREEMENT is entered into this p96 Y o /�' 1a id jZ, cb and Y between the Department of the Army (hereinafter the "Government'), represented by the U.S. Army Engineer, Jacksonville District and City of Miami Beach (hereinafter the "Non-Federal Sponsor"), represented by its City Manager. WITNESSETH, THAT: WHEREAS, the Government received a letter, dated June 5, 2015, from the City of Miami Beach in which it stated its desire to participate in a feasibility study for emergency streambank and shoreline erosion protection at Mt. Sinai Medical Center, City of Miami Beach, Florida, and in which it acknowledged its financial responsibilities for the study and a project, if one is recommended; WHEREAS, the Secretary of the Army is authorized by Section 14 of the Flood Control Act of 1946, Public Law 79-526, as amended (33 U.S.C. 701r; hereinafter"Section 14")to allot from certain appropriations an amount not to exceed$20,000,000 per year for the construction, repair, restoration, and modification of emergency streambank and shoreline protection works to prevent damages to highways, bridge approaches, and public works, churches, hospitals, schools, and other nonprofit public services; provided that no more than$5,000,000 shall be allotted for this purpose at any single locality from the appropriations for any one fiscal year; WHEREAS, the Government initiated a feasibility study, to be initially Federally funded up to $100,000, and during this Federally funded portion the Government determined that the costs of the feasibility study would exceed $100,000; WHEREAS, the Government and the City of Miami Beach desire to enter into an agreement(hereinafter the "Agreement") to complete the feasibility study(hereinafter the "Study" as defined in Article I.A. of this Agreement) and to share equally the costs of the Study that exceed$100,000; WHEREAS, Section 105(a) of the Water Resources Development Act of 1986, Public Law 99-662, as amended(33 U.S.C. 2215(a)), specifies the cost-sharing requirements applicable to the Study; WHEREAS, the Non-Federal Sponsor desires to provide in-kind contributions • (hereinafter the "in-kind contributions" as defined in Article I.I. of this Agreement) that are necessary to prepare the feasibility report and to receive credit for such contributions toward the amount of its required contribution for the Study; 1 • WHEREAS,the Government and Non-Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the Study in accordance with the terms of this Agreement; and WHEREAS, the Government and the Non-Federal Sponsor, in connection with this Agreement, desire to foster a partnering strategy and a working relationship between the Government and the Non-Federal Sponsor through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and teamwork prevent disputes, foster a cooperative bond between the Government and the Non- Federal Sponsor, and facilitate the successful Study. NOW,THEREFORE,the Government and the Non-Federal Sponsor agree as follows: ARTICLE I—DEFINITIONS A. The term"Study"shall mean the activities and tasks required to identify and evaluate alternatives and the preparation of a decision document that,when appropriate,recommends a coordinated and implementable solution for construction, repair,restoration or modification of emergency streambank and shoreline erosion protection at Mt. Sinai Medical Center,City of Miami Beach, Florida. The term includes in-kind contributions described in paragraph I. of this Article. B. The term"total study costs"shall mean the sum of all costs incurred by the Non-Federal Sponsor and the Government in accordance with the terms of this Agreement directly related to performance of the Study plus the costs of the Study incurred by the Government prior to the effective date of this Agreement. Subject to the provisions of this Agreement,the term shall include, but is not necessarily limited to: the Government's costs of plan formulation and evaluation, including applicable economic, engineering, real estate, and environmental analyses; the Government's costs of preparation of the decision document for the Study; the costs of in- kind contributions determined in accordance with Article II.B.3. of this Agreement; the Government's costs of Agency Technical Review and other review processes required by the Government;the Government's costs of Independent External Peer Review, if required, except for the costs of any contract for an Independent External Peer Review panel; the Government's supervision and administration costs; the Non-Federal Sponsor's and the Government's costs of participation in the Study Coordination Team in accordance with Article III of this Agreement;the Government's costs of contract dispute settlements or awards; and the Non-Federal Sponsor's and the Government's costs of audit in accordance with Article VI.B. and Article VI.C. of this Agreement. The term does not include the first$100,000 incurred by the Government for the Study; any costs of dispute resolution under Article V of this Agreement; any costs incurred as part of reconnaissance studies or feasibility studies under any other agreement or program; any costs of a contract for an Independent External Peer Review panel; the Non-Federal Sponsor's costs of negotiating this Agreement; or any costs of negotiating a project partnership agreement for design and construction of a project or separable element thereof. 2 C. The term"period of study" shall mean the time from the effective date of this Agreement to the date that the decision document for the study is duly approved by the Government or the date that this Agreement is terminated in accordance with Article IX of this Agreement. D. The term"financial obligations for the study"shall mean the financial obligations of the Government and the costs for in-kind contributions, as determined by the Government, that result or would result in costs that are or would be included in total study costs. E. The term"non-Federal proportionate share" shall mean the ratio of the sum of the costs included in total study costs for in-kind contributions, as determined by the Government, and the Non-Federal Sponsor's contribution of funds required by Article II.B.l.b. of this Agreement to financial obligations for the study, as projected by the Government. F. The term "Federal program funds" shall mean funds provided by a Federal agency, other than the Department of the Army,plus any non-Federal contribution required as a matching share therefor. G. The term"fiscal year"shall mean one year beginning on October 1 and ending on September 30. H. The term "PMP" shall mean the project management plan, and any modifications thereto, developed by the Government, and agreed to by the Non-Federal Sponsor, that specifies the scope, cost, and schedule for Study activities and guides the performance of the Study through the period of study. I. The term "in-kind contributions" shall mean planning, supervision and administration, services, materials, supplies, and other in-kind services that are performed or provided by the Non-Federal Sponsor after the effective date of this Agreement in accordance with the PMP and that are necessary for performance of the Study. J. The term "Section 14 Annual Program Limit" shall mean the statutory limitation on the Government's annual allotment for planning, design, and construction of all projects implemented pursuant to Section 14 of the Flood Control Act of 1946, Public Law 79-526, as amended(33 U.S.C. 701r). As of the effective date of this Agreement, such limitation is $20,000,000. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States(hereinafter the"Congress")and using those funds and funds provided by the Non-Federal Sponsor, expeditiously shall conduct the Study, applying those procedures usually applied to Federal projects, in accordance with Federal laws, regulations, and policies. The Non-Federal Sponsor expeditiously shall perform or provide the in-kind contributions in accordance with applicable Federal laws, regulations, and policies. 3 1. To the extent possible, the Government and the Non-Federal Sponsor shall conduct the Study in accordance with the PMP. 2. The Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all products that are developed by contract or by Government personnel during the period of study. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the final approval of all Study products shall be exclusively within the control of the Government. 3. The Government shall afford the Non-Federal Sponsor the opportunity to review and comment on the solicitations for all Government contracts, including relevant scopes of work, prior to the Government's issuance of such solicitations. To the extent possible,the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Non-Federal Sponsor with notification of a contract modification is not possible prior to execution of the contract modification,the Government shall provide such notification in writing at the earliest date possible. To the extent possible,the Government also shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall consider in good faith the comments of the Non-Federal Sponsor,but the contents of solicitations, award of contracts or commencement of work on the Study using the Government's own forces, execution of contract modifications,resolution of contract claims, and performance of all work on the Study, except for in-kind contributions, shall be exclusively within the control of the Government. 4. At the time the U.S. Army Engineer,Jacksonville District(hereinafter the "District Engineer")furnishes the contractor with the Government's Written Notice of Acceptance of Completed Work for each contract awarded by the Government for the Study,the District Engineer shall furnish a copy thereof to the Non-Federal Sponsor. 5. The Non-Federal Sponsor shall afford the Government the opportunity to review and comment on the solicitations for all contracts for the in-kind contributions, including relevant scopes of work,prior to the Non-Federal Sponsor's issuance of such solicitations. To the extent possible, the Non-Federal Sponsor shall afford the Government the opportunity to review and comment on all proposed contract modifications, including change orders. In any instance where providing the Government with notification of a contract modification is not possible prior to execution of the contract modification, the Non-Federal Sponsor shall provide such notification in writing at the earliest date possible. To the extent possible, the Non-Federal Sponsor also shall afford the Government the opportunity to review and comment on all contract claims prior to resolution thereof The Non-Federal Sponsor shall consider in good faith the comments of the Government but the contents of solicitations, award of contracts or commencement of work on the Study using the Non-Federal Sponsor's own forces, execution of contract modifications, resolution of contract claims, and performance of all work on in-kind contributions shall be exclusively within the control of the Non-Federal Sponsor. 6. At the time the Non-Federal Sponsor furnishes a contractor with a notice of 4 acceptance of completed work for each contract awarded by the Non-Federal Sponsor for in-kind contributions, the Non-Federal Sponsor shall furnish a copy thereof to the Government. B. The Non-Federal Sponsor shall contribute 50 percent of total study costs in accordance with the provisions of this paragraph. 1. The Non-Federal Sponsor shall provide a contribution of funds as determined below: a. If the Government projects at any time that the collective value of the Non-Federal Sponsor's contributions listed in the next sentence will be less than the Non-Federal Sponsor's required share of 50 percent of total study costs, the Government shall determine the amount of funds that would be necessary to meet the Non-Federal Sponsor's required share without considering the credit the Government projects will be afforded for in-kind contributions pursuant to paragraph B.4. of this Article. The Government shall determine the amount of funds that would be necessary by subtracting from the Non-Federal Sponsor's required share of 50 percent of total study costs the collective value of the Non-Federal Sponsor's contributions under Article III and Article VI of this Agreement. b. The Non-Federal Sponsor shall provide funds in the amount determined by this paragraph in accordance with Article IV.B. of this Agreement. To determine the contribution of funds the Non-Federal Sponsor shall provide, the Government shall reduce the amount determined in accordance with paragraph B.1.a. of this Article by the amount of credit the Government projects will be afforded for in-kind contributions pursuant to paragraph B.4. of this Article. 2. The Government, subject to the availability of funds and as limited by paragraph B.5. of this Article and the Section 14 Annual Program Limit, shall refund or reimburse to the Non- Federal Sponsor any contributions in excess of 50 percent of total study costs if the Government determines at any time that the collective value of the following has exceeded 50 percent of total study costs: (a)the Non-Federal Sponsor's contribution of funds required by paragraph B.l.b. of this Article; (b)the amount of credit to be afforded for in-kind contributions pursuant to paragraph B.4. of this Article; and(c)the value of the Non-Federal Sponsor's contributions under Article III and Article VI of this Agreement. 3. The Government shall determine and include in total study costs any costs incurred by the Non-Federal Sponsor for in-kind contributions, subject to the conditions and limitations of this paragraph. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the amount of costs to be included in total study costs for in-kind contributions. a. Acceptance by the Government of in-kind contributions shall be subject to a review by the Government to verify that all economic, engineering, real estate, and environmental analyses or other items performed or provided as in-kind contributions are accomplished in a satisfactory manner and in accordance with applicable Federal laws, regulations, and policies, and to verify that all analyses, services, materials, supplies, and other 5 in-kind services provided as in-kind contributions are necessary for the Study. b. The Non-Federal Sponsor's costs for in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement shall be subject to an audit in accordance with Article VI.C. of this Agreement to determine the reasonableness, allocability, and allowability of such costs. c. The Non-Federal Sponsor's costs for in-kind contributions that may be eligible for inclusion in total study costs pursuant to this Agreement are not subject to interest charges, nor are they subject to adjustment to reflect changes in price levels between the time the in-kind contributions are provided and the time the costs are included in total study costs. d. The Government shall not include in total study costs any costs for in- kind contributions paid by the Non-Federal Sponsor using Federal program funds unless the Federal agency providing the funds verifies in writing that such funds are authorized to be used to carry out the Study. e. The Government shall not include in total study costs any costs for in- kind contributions in excess of the Government's estimate of the costs of the in-kind contributions if the services, materials, supplies, and other in-kind services had been provided by the Government. In addition, the Government shall not include in total study costs any costs for in-kind contributions that were obtained at no cost to the Non-Federal Sponsor. 4. The Government, in accordance with this paragraph, shall afford credit toward the amount of funds determined in accordance with paragraph B.1.a. of this Article for the costs of in-kind contributions determined in accordance with paragraph B.3. of this Article. However, the maximum amount of credit that can be afforded for in-kind contributions shall not exceed the least of the following amounts as determined by the Government: the amount of funds determined in accordance with paragraph B.l.a. of this Article; the costs of in-kind contributions determined in accordance with paragraph B.3. of this Article; or 50 percent of total study costs. 5. Notwithstanding any other provision of this Agreement, the Non-Federal Sponsor shall not be entitled to reimbursement of any costs of in-kind contributions determined in accordance with paragraph B.3. of this Article and included in total study costs that exceed the amount of credit afforded for in-kind contributions determined in accordance with paragraph B.4. of this Article and the Non-Federal Sponsor shall be responsible for 100 percent of all costs of in-kind contributions included in total study costs that exceed the amount of credit afforded. C. Notwithstanding any other provision of this Agreement, Federal financial participation in the Study is limited by the following provisions of this paragraph. 1. In the event the Government projects that the amount of Federal funds the Government will make available to the Study through the then-current fiscal year, or the amount of Federal funds the Government will make available for the Study through the upcoming fiscal year, is not sufficient to meet the Federal share of total study costs that the Government projects to be incurred through the then-current or upcoming fiscal year, as applicable, the Government 6 shall notify the Non-Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Study, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. 2. If the Government determines that the total amount of Federal funds provided by Congress for all studies and projects implemented pursuant to Section 14 has reached the Section 14 Annual Program Limit, and the Government projects that the Federal funds the Government will make available to the Study within the Section 14 Annual Program Limit will not be sufficient to meet the Federal share of total study costs, the Government shall notify the Non-Federal Sponsor in writing of such insufficiency of funds and of the date the Government projects that the Federal funds that will have been made available to the Study will be exhausted. Upon the exhaustion of Federal funds made available by the Government to the Study within the Section 14 Annual Program Limit, future performance under this Agreement shall be suspended and the parties shall proceed in accordance with Article IX.C. of this Agreement. D. Upon conclusion of the period of study,the Government shall conduct an accounting, in accordance with Article N.C. of this Agreement, and furnish the results to the Non-Federal Sponsor. E. The Non-Federal Sponsor shall not use Federal program funds to meet any of its obligations for the Study under this Agreement unless the Federal agency providing the funds verifies in writing that such funds are authorized to be used to carry out the Study. • F. This Agreement shall not be construed as obligating either party to implement a project. Whether the Government proceeds with implementation of the project depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies and with the budget priorities of the Administration. ARTICLE III- STUDY COORDINATION TEAM A. To provide for consistent and effective communication,the Non-Federal Sponsor and the Government,not later than 30 calendar days after the effective date of this Agreement, shall appoint named senior representatives to a Study Coordination Team. Thereafter, the Study Coordination Team shall meet regularly until the end of the period of study. The Government's Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chair the Study Coordination Team. B. The Government's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Study Coordination Team informed of the progress of the Study and of significant pending issues and actions, and shall seek the views of the Study Coordination Team on matters that the Study Coordination Team generally oversees. 7 C. Until the end of the period of study, the Study Coordination Team shall generally oversee the Study, including matters related to: plan formulation and evaluation, including applicable economic, engineering, real estate, and environmental analyses; scheduling of reports and work products; independent technical review and other review processes required by the Government; completion of all necessary environmental coordination and documentation; contract awards and modifications; contract costs; the Government's cost projections; the performance of, scheduling, and determining the value of in-kind contributions; determination of anticipated future requirements for real property and relocation requirements and performance of operation, maintenance, repair,rehabilitation, and replacement of the proposed project including anticipated requirements for permits; and other matters related to the Study. This oversight of the Study shall be consistent with the PMP. D. The Study Coordination Team may make recommendations to the District Engineer on matters related to the Study that the Study Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Study Coordination Team. The Government,having the legal authority and responsibility for performance of the Study has the discretion to accept or reject, in whole or in part,the Study Coordination Team's recommendations. E. The Non-Federal Sponsor's costs of participation in the Study Coordination Team shall be included in total study costs and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article VI.C. of this Agreement to determine reasonableness, allocability, and allowability of such costs. The Government's costs of participation in the Study Coordination Team shall be included in total study costs and shared in accordance with the provisions of this Agreement. ARTICLE IV-METHOD OF PAYMENT A. In accordance with the provisions of this paragraph, the Government shall maintain current records and provide to the Non-Federal Sponsor current projections of costs, financial obligations, the contributions provided by the parties, the costs included in total study costs for in-kind contributions determined in accordance with Article II.B.3. of this Agreement, and the credit to be afforded for in-kind contributions pursuant to Article II.B.4. of this Agreement. 1. As of the effective date of this Agreement, total study costs are projected to be $325,000; the value of the Non-Federal Sponsor's contributions under Article III and Article VI of this Agreement is projected to be$25,000; the amount of funds determined in accordance with Article II.B.1.a. of this Agreement is projected to be $137,500; the costs included in total study costs for in-kind contributions determined in accordance with Article II.B.3. of this Agreement are projected to be $81,250; the credit to be afforded for in-kind contributions pursuant to Article II.B.4. of this Agreement is projected to be $81,250; the Non-Federal Sponsor's contribution of funds required by Article II.B.1.b. of this Agreement is projected to be $56,250; and the non- Federal proportionate share is projected to be 45.83 percent. These amounts and percentage are estimates subject to adjustment by the Government, after consultation with the Non-Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and 8 the Non-Federal Sponsor. 2. By October 1, 2015, and by each quarterly anniversary thereof until the conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall provide the Non-Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the following: total study costs; the value of the Non-Federal Sponsor's contributions under Article III and Article VI of this Agreement; the amount of funds determined in accordance with Article II.B.I.a. of this Agreement; the costs included in total study costs for in-kind contributions determined in accordance with Article II.B.3. of this Agreement; the credit to be afforded for in-kind contributions pursuant to Article II.B.4. of this Agreement; the Non-Federal Sponsor's contribution of funds required by Article II.B.1.b. of this Agreement; and the non-Federal proportionate share. B. The Non-Federal Sponsor shall provide the contribution of funds required by Article II.B.1.b. of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 7 calendar days after the effective date of this Agreement, the Government shall notify the Non-Federal Sponsor in writing of the funds the Government determines to be required from the Non-Federal Sponsor to meet its projected share under Article II.B.1.b. of this Agreement. Within 30 calendar days of receipt of such notice, the Non-Federal Sponsor shall provide the Government with the full amount of such required funds by delivering a check payable to "FAO, USAED, Jacksonville(K3)"to the District Engineer, or verifying to the satisfaction of the Government that the Non-Federal Sponsor has deposited such required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non-Federal Sponsor, or by providing an Electronic Funds Transfer of such required funds in accordance with procedures established by the Government. 2. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government deems necessary, when considered with any credit the Government projects will be afforded for in-kind contributions pursuant to Article II.B.4. of this Agreement, to cover: (a) the non-Federal proportionate share offinancial obligations for the study incurred prior to the commencement of the period of study; and(b) the non-Federal proportionate share offinancial obligations for the study as financial obligations for the study are incurred. If at any time the Government determines that additional funds will be needed from the Non-Federal Sponsor to cover the Non-Federal Sponsor's share of such financial obligations, the Government shall notify the Non-Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within 60 calendar days from receipt of such notice, the Non-Federal Sponsor shall provide the Government with the full amount of such additional required funds through any of the payment mechanisms specified in paragraph B.1. of this Article. C. Upon conclusion of the period of study and resolution of all relevant claims and appeals, the Government shall conduct a final accounting and furnish the Non-Federal Sponsor with written notice of the results of such final accounting. If outstanding relevant claims and appeals prevent a final accounting from being conducted in a timely manner,the Government shall conduct an interim accounting and furnish the Non-Federal Sponsor with written notice of 9 the results of such interim accounting. Once all outstanding relevant claims and appeals are resolved, the Government shall amend the interim accounting to complete the final accounting and furnish the Non-Federal Sponsor with written notice of the results of such final accounting. The interim or final accounting, as applicable, shall determine total study costs, each party's required share thereof, and each party's total contributions thereto as of the date of such accounting. 1. Should the interim or final accounting, as applicable, show that the Non- Federal Sponsor's total required share of total study costs exceeds the Non-Federal Sponsor's total contributions provided thereto, the Non-Federal Sponsor, no later than 90 calendar days after receipt of written notice from the Government, shall make a payment to the Government in an amount equal to the difference by delivering a check payable to "FAO, USAED, Jacksonville (K3)" to the District Engineer or providing an Electronic Funds Transfer in accordance with procedures established by the Government. 2. Should the interim or final accounting, as applicable, show that the total contributions provided by the Non-Federal Sponsor for total study costs exceed the Non-Federal Sponsor's total required share thereof, the Government, subject to the availability of funds and as limited by Article II.B.5. of this Agreement and the Section 14 Annual Program Limit, shall refund or reimburse the excess amount to the Non-Federal Sponsor within 90 calendar days of the date of completion of such accounting. In the event the Non-Federal Sponsor is due a refund or reimbursement and funds are not available to refund or reimburse the excess amount to the Non-Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund or reimbursement. ARTICLE V - DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. Each party shall pay an equal share of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI- MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non-Federal Sponsor shall develop procedures for keeping books,records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate,the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The 10 Government and the Non-Federal Sponsor shall maintain such books,records,documents,or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books,records,documents, or other evidence were required. To the extent permitted under applicable Federal laws and regulations,the Government and the Non- Federal Sponsor shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26,the Non-Federal Sponsor is responsible for complying with the Single Audit Act Amendments of 1996(31 U.S.C. 7501-7507), as implemented by OMB Circular No. A-133 and Department of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor and to the extent permitted under applicable Federal laws and regulations,the Government shall provide to the Non-Federal Sponsor and independent auditors any information necessary to enable an audit of the Non-Federal Sponsor's activities under this Agreement. The costs of any non-Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Study shall be included in total study costs and shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. 7503,the Government may conduct audits in addition to any audit that the Non-Federal Sponsor is required to conduct under the Single Audit Act Amendments of 1996. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular A-87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total study costs and shared in accordance with the provisions of this Agreement. ARTICLE VII - FEDERAL AND STATE LAWS In carrying out its obligations under this Agreement, the Non-Federal Sponsor shall comply with all requirements of applicable Federal laws and implementing regulations, including, but not limited to: Title VI of the Civil Rights Act of 1964, as amended(42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto; the Age Discrimination Act of 1975 (42 U.S.C. 6102); the Rehabilitation Act of 1973, as amended(29 U.S.C. 794), and Army Regulation 600-7 issued pursuant thereto. ARTICLE VIII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement,the Government and the Non-Federal Sponsor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. B. In the exercise of its rights and obligations under this Agreement,neither party shall provide,without the consent of the other party, any contractor with a release that waives or purports to waive any rights the other party may have to seek relief or redress against that contractor either 11 pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE IX-TERMINATION OR SUSPENSION A. Prior to conclusion of the period of study, upon 30 calendar days written notice to the other party, either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until either the Government or the Non-Federal Sponsor elects to terminate this Agreement. B. If at any time the Non-Federal Sponsor fails to fulfill its obligations under this Agreement,the Assistant Secretary of the Army(Civil Works)shall terminate this Agreement or suspend future performance under this Agreement unless the Assistant Secretary of the Army(Civil Works)determines that continuation of performance of the Study is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Study. C. In the event future performance under this Agreement is suspended pursuant to Article II.C. of this Agreement, such suspension shall remain in effect until such time that the Government notifies the Non-Federal Sponsor in writing that sufficient Federal funds are available to meet the Federal share of total study costs the Government projects to be incurred through the then-current or upcoming fiscal year, or the Government or the Non-Federal Sponsor elects to terminate this Agreement. D. In the event that this Agreement is terminated pursuant to this Article,the parties shall conclude their activities relating to the Study and conduct an accounting in accordance with Article IV.C. of this Agreement. To provide for this eventuality, the Government may reserve a percentage of total Federal funds made available for the Study and an equal percentage of the total funds contributed by the Non-Federal Sponsor in accordance with Article II.B.1.b. of this Agreement as a contingency to pay costs of termination, including any costs of resolution of contract claims and contract modifications. Upon termination of this Agreement, all data and information generated as part of the Study shall be made available to the parties to the Agreement. E. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment owed by the Non-Federal Sponsor shall be charged interest at a rate,to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13 week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3 month period if the period of delinquency exceeds 3 months. 12 ARTICLE X -NOTICES A. Any notice,request,demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally or sent by telegram or mailed by first-class,registered, or certified mail, as follows: If to the Non-Federal Sponsor: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 If to the Government: District Engineer U.S. Army Corps of Engineers, Jacksonville District P.O. Box 4970 Jacksonville, Florida 32231-0019 B. A party may change the recipient or address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice,request, demand,or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. ARTICLE XI - CONFIDENTIALITY To the extent permitted by the laws governing each party,the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. ARTICLE XII -THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, nor may be construed, to create any rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third person not party to this Agreement. IN WITNESS WHEREOF,the parties hereto have executed this Agreement,which shall become effective upon the date it is signed by the District Engineer. 13 DEPARTMENT OF THE ARMY CITY OF MIAMI BE��CH, FLORIDA BY: BY: Jaso . Kirk,P.E. J y L. �� r ales Col nel,U.S. Army Cty Manager District Engineer DATE: 91Z-5// 5 1 DATE: t/ii z® '5 APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION City Attorney Date 14 CERTIFICATE OF AUTHORITY I, Raul Aguila,do hereby certify that I am the principal legal officer of the City of Miami Beach,that the City of Miami Beach is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Miami Beach in connection with the feasibility study for the City of Miami Beach, Mount Sinai Medical Center, Section 14 Project, and to pay damages, if necessary, in the event of the failure to perform in accordance with the terms of this Agreement and that the persons who have executed this Agreement on behalf of the City of Miami Beach have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of J T kset fl ( ` 20 15 goz), Q5,A- Raul Aguila City Attorney City of Miami Beach 15 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers(including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such failure. Jimmy L.,Morale City Man:,_er City of Mi.`mi Beach DATE: C ' jOi 16